Sunday, 28 June 2009

Yesterday, Juan Johnson of Chicago was awarded $21.1 million for 11½ years spent in jail for a murder he didn’t commit, the largest award for a wrongful conviction lawsuit in Chicago history.

Johnson, a former member of the Spanish Cobras gang, was arrested in 1989 and accused of murdering a rival gang member. Eleven years later at his retrial, witnesses testified that they were intimidated into identifying Johnson as the murderer by arresting officer Reynaldo Guevara. An article posted today by the Chicago Tribune records a statement from Samuel Perez, a fellow Cobra:

“[Guevara] told me that he knows that the Cobras killed that Eagle. Which Cobra, he didn’t care, but he preferred that it was this Cobra” and pointed at a picture of Johnson, Perez said. “I took it as a threat. … I was going to get hooked up for that murder or Juan Johnson was going to get hooked up for that murder.”

From the time of accusation, Johnson had claimed to be framed by now-former officer Reynaldo Guevara and the jury agreed during his retrial. In a separate trial, Guevara himself was ordered to pay Johnson $15,000 compensation. However, even before being awarded the compensation from Guevara,

Johnson said he wasn’t looking for more money from the police officer he said framed him. All he wanted was an apology… Guevara’s legal team objected, saying an apology could taint any chance of getting the decision reversed when they appeal.

Juan Johnson’s case is a step forward in the right direction for exoneree compensation. However, Guevara still owes Johnson an apology for his wrongful accusation. Although the compensation he contributes will help Johnson get back on his feet, that money cannot take back the more than 11 years of Johnson’s life wasted in prison and the criminal record that will stick with Johnson forever.

There is a moral obligation to provide compensation, and in Johnson’s case living peacefully includes a personal apology from Guevara.

Monday, 15 June 2009

William Dillon spent 27 years behind bars for a crime he didn't commit. Wilton Dedge spent a similar stretch behind bars before finally being exonerated. Juan Ramos was sentenced to death before being freed from prison over a crime he didn't commit. The three men are linked not just by their innocence, but by the role played in their cases by dog handler John Preston, a one-time Pennsylvania state trooper, and his amazingly talented dog, Harass II. Preston was only one of many "scientific" experts later exposed as a fraud, some of whose victims may still wait to be revealed.

Scott Maxwell of the Orlando Sentinel has the details regarding Preston and the wreckage he left behind. But the fact that Preston and his "wonder dog" were so relied upon by prosecutors and courts until exposed in the media and humiliated by one judge demonstrates just how much suspension of disbelief (or outright dishonesty) is behind the acceptance of "forensic science" that too often turns out to be either poorly applied -- or even pure hocum.

Reason magazine's Radley Balko has made justified waves in recent years by exposing the nonsense disguised as medicine peddled by Dr. Michael West, a dentist who offered scientifically implausible evidence of guilt (in several cases, of defendants later proven innocent), based on his exclusive bite-mark "technique."

Balko was also largely responsible for (hopefully) ending the career of the notorious Dr. Steven Hayne, a medical examiner without credentials who seemed to customize his testimony to meet the needs of prosecutors.

But it's not just corrupt individuals who deserve skepticial consideration -- so do whole areas of forensic "science." Drug testing, for instance, is a highly subjective "science" that has a lot to do with the skill -- and honesty -- of technicians. It's not at all uncommon for ordinary soap to test positive for illegal intoxicants.

A report on the state of forensic medicine for the National Academies of Science concedes that "The fact is that many forensic tests -- such as those used to infer the source of toolmarks or bite marks -- have never been exposed to stringent scientific scrutiny."

Overall, says the report:

[I]n some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people. This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Moreover, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence.

"Faulty" science has to include the evidence of dogs, which have become so ubiquitous in recent years because of their supposed ability to connect defendants to crime scenes, or to simply detect forbidden substances.

But, despite the legendary power of their noses, canine-based evidence has to be taken with a grain of salt. For starters, dogs' "testimony" is highly dependent on the word of their handlers. In fact, there's no standard way for a dog to tell us that something has been detected. Some dogs just sit, others jump up and bark -- interpretation is in the eye of the handler.

Dogs, also, are notoriously easy to manipulate, since they develop close bonds with their handlers. For a 2004 report on the unreliability of detection dogs, Auburn University professor Larry Myers, a leading expert on canine detection programs, told CBS News, “They can tell you that something's there, that's not there, simply to get praise, to get food, to get whatever they're working for.”

Through improperly training his dogs, or simply lying about their alerts, it was easy for John Preston to manufacture evidence of the guilt of innocent men.

But fallibility can be as dangerous as fraud. The U.S. Court of Appeals for the Eighth Circuit ruled in 2007 that canine testimony was acceptable in a case where the dog was only 54% accurate.

How many years of prison time are we willing to let ride on a 54% accuracy rate?

None of this is to say that forensic science is worthless. Properly used and understood it's absolutely necessary. After all, William Dillon and Wilton Dedge were freed of the shackles placed on them by bogus canine testimony because of the more rigorous standards set by DNA evidence.

But presenting fallible and sometimes fraudulent evidence as if it's beyond question runs the risk of discrediting good science along with the bad. The damage done by the John Prestons of the world can only be undone if we treat science as an imperfect part of an imperfect world -- not as the magic so-often peddled by charlatans.

Saturday, 13 June 2009

Jeffrey Deskovic heard a TV talk show host announce President Obama’s nominee for the Supreme Court last month, and his mind raced. That name; he remembered that name.

He emerged from bed and riffled through the boxes of motions, appeals and letters he had accumulated in the 16 years he spent in a New York prison for a rape and murder he did not commit.

And there it was, a ruling from the United States Court of Appeals for the Second Circuit, dated April 26, 2000, and barely two pages long. It was co-written by Sonia Sotomayor.

“We have considered all of petitioner-appellant’s remaining arguments and find them to be without merit,” the ruling said.

Imprisoned at the age of 16 for the killing of a high school classmate, Mr. Deskovic, now 35, filed a habeas corpus petition in 1997 in Federal District Court contesting his conviction. The court denied the request because the paperwork had arrived four days late. Mr. Deskovic and one of his lawyers — who he said had been misinformed about the deadline for filing — appealed the decision to the federal appellate court on which Ms. Sotomayor sat.

Ms. Sotomayor, along with the other judge on the panel, ruled that the lawyer’s mistake did not “rise to the level of an extraordinary circumstance” that would compel them to forgive the delay. There was no need to look at the evidence that Mr. Deskovic insisted would affirm his innocence, they said.

Mr. Deskovic spent six more years behind bars, until DNA found in the victim not only cleared him, but connected another man to the crime.

Habeas corpus petitions are rarely granted, and Mr. Deskovic knew that all along. Federal judges routinely deny them, including for purely procedural reasons. But he listened as President Obama, in seeking a new Supreme Court justice, talked about how he wanted a judge with not only great intellect, but also great empathy, a judge who knew how the real world worked and who could apply some common sense.

And so Mr. Deskovic is angry. All over again.

“When we filed the appeal, I thought for sure that she and the other judge were going to see the facts of the case, that this wasn’t an error of my doing and that upholding a ruling like that would be a miscarriage of justice,” Mr. Deskovic said.

Mr. Deskovic — who since his release has graduated from college and enrolled in a master’s program in criminal justice — is not sure any other judge would have treated his appeal differently. But he wants his anger aired.

“To hear that a judge who put procedure over innocence could be moving to a higher court is very upsetting to me,” he said.

Mr. Deskovic was arrested in 1989 after the police found the body of the classmate, 15-year-old Angela Correa, at a park in Peekskill, in Westchester County. Investigators focused on him in part because he seemed unusually distraught over the killing.

After several hours of questioning — and after being promised that he would go home if he admitted to the murder — Mr. Deskovic confessed.

DNA extracted from semen found in Ms. Correa’s body did not match Mr. Deskovic’s, but prosecutors said at his trial that it was because Ms. Correa had had consensual sex with another man before being attacked. Jurors returned a guilty verdict.

In his petition, Mr. Deskovic contested the constitutionality of his conviction, saying it resulted from a coerced confession, and that the DNA offered proof of his innocence.

Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas corpus petitions must be submitted no more than a year after a conviction becomes final or, as the courts later determined, no more than a year from the act’s implementation if the conviction became final before that. Mr. Deskovic was convicted in 1990. He had until April 24, 1997, to turn in his request. It arrived four days after that.

In court papers, the lawyer who drafted the petition said that a clerk had provided the wrong deadline. Ms. Sotomayor and her colleague, Judge Rosemary S. Pooler, ruled that the “alleged reliance of Deskovic’s attorney on verbal misinformation from the court clerk” amounted essentially to neglect.

“There was at least an explanation, which was all the more powerful because of the question of innocence raised by the DNA evidence, but the court paid no attention to it,” said another of his lawyers, Eleanor Jackson Piel , who handled the appeal.

There were aspects of Ms. Sotomayor’s career that might have given Mr. Deskovic hope. She had spent years on the board of a public-interest law group, adopting an aggressive stance on issues like police brutality and the death penalty. She also had a record of concern for the quality of lawyers assigned to represent indigent defendants.

But the odds were stacked against Mr. Deskovic. A 2007 report by Vanderbilt University Law School and the National Center for State Courts, for example, showed that out of 2,384 randomly selected habeas corpus petitions filed by state prisoners in noncapital cases in 2003 and 2004, only seven had been granted.

Also, it is rare for appellate judges to reverse a lower court’s decision that is based on precedent and stands on solid procedural grounds, explained Jamal Greene, a professor at Columbia Law School.

“She’s a very careful judge and as far as I can tell, very much believes in the rule of law,” Mr. Greene said of Ms. Sotomayor.

Mr. Deskovic said that he might be able to understand what happened, but he could never forgive.

“There was a brief moment that I wondered what she would say to me to explain her ruling,” he said. “But then I thought that even if she justified it, it still wouldn’t change anything for me. I’m never going to get back the time that I lost.”

This article has been revised to reflect the following correction:

Correction: June 12, 2009 An article on Wednesday about reaction to the news of Sonia Sotomayor’s nomination for the Supreme Court from Jeffrey Deskovic, a New York man imprisoned for murder until he was vindicated by DNA evidence, omitted a word from a 2000 federal appeals court ruling in his case that was co-written by Judge Sotomayor. The line is, “We have considered all of petitioner-appellant’s remaining arguments and find them to be without merit,” not “all of petitioner-appellant’s arguments.”

LIMON — Tim Kennedy tugs at the Department of Corrections No. 94886 tag on his green-blue prison uniform and says with a smile: "This number and stuff are dead. My convictions are overturned and I'm no longer a convicted felon. I'm all new."

Kennedy, 52, is hoping to be freed after he is transferred this week from a prison in Limon to El Paso County, where a judge overturned his conviction in a 1991 double murder and ordered a new trial.

El Paso County District Judge Thomas Kane's decision April 21 to toss out Kennedy's conviction in the slayings of 15-year-old Jennifer Carpenter and her boyfriend, 37-year-old Steve Staskiewicz, followed years of appeals capped by a 14-day hearing during which another possible suspect was named.

Kennedy could be released after a hearing Tuesday if prosecutors decide to drop the case or agree to $50,000 bail sought by Kennedy's attorneys, Kathleen Carlson and John Dicke, who have been fighting for Kennedy's release since 2006.

El Paso County District Attorney Dan May has declined to talk publicly about the case.

During an interview Thursday at the Limon Correctional Facility on the Eastern Plains about 95 miles east of Denver, Kennedy cherished the thought of being a free man. Apart from spending time with his sister and brother, one of the first things Kennedy would do if he is freed is get a steak dinner.

"It's really great to think that I actually have a chance at getting my life back," he said. "I tell you what, boy, it's been a long, long haul."

Carpenter, a runaway, was the alleged victim in a 1991 case accusing Charles Stroud and Rebecca Corkins of kidnapping and sexually assaulting her. Prosecutors had learned that a "hit" had been put out on Carpenter and were scrambling to take her testimony under oath when she and Staskiewicz were slain in his trailer.

Kennedy had lent Staskiewicz, his friend, two TVs and a stereo for entertainment while the couple waited out the hit. Kennedy also lent Staskiewicz three guns for protection, including an AMT 380 handgun that was the murder weapon.

After the killings, Kennedy said, investigators immediately tried connecting him to Stroud and Corkins, whom he had never met. Kennedy was interviewed by an investigator at his apartment, which along with his car, was searched 10 days after the slaying.

"They didn't find anything," Carlson said, "which is an interesting part of this case because the scene is extremely bloody."

Nevertheless, investigators arrested Kennedy nearly five years later. Their theory: Kennedy killed Staskiewicz and Carpenter over the items, including the guns, he had lent them.

Kennedy grew up in Denver and worked as a carpenter, helping build several of downtown Denver's skyscrapers. His only brush with the law before the slayings was a minor offense of possession of an injection device. He was trying to start a trash collection business in Colorado Springs when he came under suspicion for the slayings.

He was living with his parents in Denver when El Paso County sheriff's deputies arrested him on Dec. 21, 1995. He had just finished eating breakfast and was planning to decorate the family Christmas tree.

"I got a phone call. And it says, 'Yeah, Mr. Kennedy, this is the sheriff's department. We're outside. We need you to come out to the front yard,'" Kennedy recounted.

He's been in custody ever since.

At trial, the only physical evidence linking Kennedy to the crime was the FBI's comparative bullet lead analysis, which purported to be able to trace a bullet from a crime scene to a box of bullets in a suspect's possession. That technique has since been discredited as "exceeding the limits of science" and the FBI stopped the analysis in 2005.

"This was the first time that I really had any involvement in the justice system," Kennedy said. "I had faith in the justice system. So did my parents. I thought justice worked in this country, I really did."

In overturning Kennedy's conviction, Judge Kane listed several factors that could win Kennedy an acquittal:

— His defense attorney at trial failed to develop an adequate alternative suspect theory by relying on investigative files and not interviewing witnesses who had information about a murder conspiracy involving other people.

— The FBI's comparative bullet lead analysis.

— Prosecutors had a jailhouse letter in their files as part of another case that should have been turned over to Kennedy's attorney that could have been used to prove his innocence. There are no allegations of wrongdoing by prosecutors.

— Lack of DNA evidence on the victims' clothing and on a sponge believed to have been used as a silencer during the slayings.

Investigators said the killer dragged Staskiewicz's body across the floor and carried Carpenter's body "like a bride" over to Staskiewicz. DNA tests conducted by Dutch expert Richard Eikelenboom for Kennedy's lawyers found none of Kennedy's DNA on clothing where the killer would have touched the victims, or on the sponge.

Eikelenboom's testing helped overturn the conviction and life sentence of Timothy Masters in the 1987 slaying of Peggy Hettrick in Fort Collins. Masters, freed in January 2008, was the first person in Colorado released from prison because of DNA evidence. Hettrick's slaying remains unsolved.

Based on witness testimony at trial, Dicke believes Staskiewicz and Carpenter let their guard down and allowed a friend into the trailer, who then used Kennedy's gun to kill the couple when they fell asleep.

That friend has been named in court documents but has not been charged in the slayings. That friend was also quoted by a witness in court as saying he used "some dumb (expletive's)" gun and called it "a gift from God."

"I wouldn't mind going to trial," Kennedy said. "You know, all these people think it will be a nightmare. I really wouldn't mind. I'm not scared at all."

Kennedy's mother, Lois June Kennedy, died in 2005 at the age of 83. His father, John Francis Kennedy, died in 2007 at age 85.

"There are times when it brings you to tears when you think about how lucky you are, how things have worked out, how your family stayed with you," Kennedy said. "There's a lot of wonderful things that have come out of this situation. You know, I'll never forget my parents. They spent their life savings (on his defense). Even after that you know, they stuck with me through the rest of their lives.

"There was never any suspicion or fear or nothing at all because they know I'm not a murderer."

Corkins completed a prison sentence in 1997 for criminal attempt and drug abuse stemming from the original Carpenter case, according to Department of Corrections records.

Corkins said recently she was surprised when she was served a subpoena last year to testify as part of Kennedy's request for a new trial. She said she didn't know about the slayings until she saw it on television in 1991.

Stroud is serving a 50-year sentence in a state prison in Canon City for kidnapping in the Carpenter case. Stroud declined a request for comment sent through prison officials.